HKSAR v. ALAN EDWARD VAN LEUVEN

 DCCC1088/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1088 OF 2008

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant is convicted on his own pleas of one charge of possession of an offensive weapon; one charge of possession of arms without a licence; one charge of possession of prohibited weapons; and one charge of failing to surrender to custody without reasonable cause.

2.  According to the facts admitted by the defendant, he was stopped and searched by the police at 9 pm on 7 August 2008 in Nathan Road, where knuckleduster and a folding knife were found in the defendant’s trouser pocket.

3.  The defendant was then taken back to his residence, which was virtually a bed in a guest house within Chungking Mansions, where a search was conducted on the defendant’s personal belongings. As a result of the search, more prohibited items were found and they were the subject matters of Charges 2 and 4. These included two stun guns, two batons and one more knuckleduster.

4.  According to the defendant, these items were purchased openly from different traders, either in Mongkok or Temple Street area.

5.  The defendant claimed that he had previously been assaulted and robbed in Hong Kong, therefore by carrying the knuckleduster around he got a sense of security.

6.  The defendant also claimed that after purchasing the batons and the stun guns he had no intention to use them to hurt anyone; in fact, since the purchase of these items he had always kept them in his locker in Chungking Mansion and had never carried them in any public place in Hong Kong.

7.  The defendant is a 38 year old mature man who came from the United States of America. He has a clear record in Hong Kong.

8.  Mr Kelly, counsel for the defendant, in his plea of mitigation helpfully provided this court with the defendant’s personal background, both in terms of his academic achievements as well as his employment history.

9.  Mr Kelly stressed that on the available information the defendant appeared to be someone who has always been gainfully employed and the commission of the present offences could be regarded as out of character conduct.

10.  Mr Kelly suggested that perhaps his other family members’ previous and current involvement with police and security job plus the fact that the defendant was keen on war games had influenced the defendant to the extent that he was always fascinated with different types of weapons.

11.  One thing however is certain though, according to Mr Kelly, which is that the defendant had never intended to use any of the items found for any unlawful purpose or commission of any crime in Hong Kong.

12.  As far as the charge of failing to surrender to custody is concerned, it was submitted by Mr Kelly that the defendant committed that offence out of his fear to face the consequences of the trial of the charges.

13.  The offences committed by the defendant which involved possession of various weapons are always considered to be serious in Hong Kong. This is more so when it comes to stun guns. While it is accepted that there is no tariff for a charge of possession of stun gun, the normal sentence is one of immediate custodial sentence.

14.  I have been referred to a number of previous decisions on sentencing cases involving stun guns. These cases include the case of HKSAR v Li Hung Kwan, CACC250/2002, which is a case involving possession of a stun gun capable of discharging 35,000 volts. In that case, the stun gun with that sort of power is described as in the middle lower range. A starting point of 20 months’ imprisonment was taken in Li’s case.

15.  Another case referred to me is the case of R v Wong Chuen Pong, CACC579/1996. In that case, the Court of Appeal took the view that for possession of a stun gun capable of discharging 60,000 volts a sentence of 2 years on a plea of guilty was not manifestly excessive.

16.  I have considered these cases. I have also considered the circumstances involving the present case. Although these two cases are never meant to be tariff cases, they are however capable of giving some useful guidance as to the sort of sentence that should be passed on someone guilty of possession of stun guns of different degrees of power.

17.  In our present case, two stun guns were involved. The voltage capable of being discharged are 35,000 and 58,000 volts respectively, while it is the one that is capable of discharging 58,000 volts that causes me more concern because it is a much powerful weapon than the other one.

18.  If 60,000 volts attracts a starting point of 3 years’ imprisonment, then the present case on an arithmetical formula would result in a sentence very close to 2 years’ imprisonment, but I do not think an outright arithmetic calculation is always possible. Each case must be decided on its own facts.

19.  The defendant in the present case is a man of previous good character. He is a USA citizen. Mr Kelly submitted that the defendant stands a high chance of being removed from the jurisdiction after he has served his sentence in Hong Kong.

20.  While there is no certainty in what Mr Kelly has said, I take the view that the chances of that happening are high. As a result, the chances of the defendant re-offending in Hong Kong would be much smaller.

21.  Further, the defendant in the present case had the stun gun locked up in his locker whereas the defendant in Wong Chuen Pong’s case was carrying a stun gun on the street when he was stopped. A distinction should therefore be drawn between this case and Wong’s case.

22.  Having considered all the relevant circumstances, in particular the relatively small chance of the defendant re-offending in Hong Kong, I am prepared to take a relatively lenient view in respect of the stun gun charge. I am prepared to take 21 months as the starting point, which will be reduced to 14 months to reflect the defendant’s plea of guilty to this charge.

23.  As to the 1st and the 4th charges, these charges involve two knuckledusters and two batons. I take a view that in respect of an offence of this nature and the quantity of weapon involved a short imprisonment would be appropriate.

24.  I take 6 months as the starting point for each charge. After giving the defendant one-third discount for his pleas of guilty, the sentences I impose on the 1st and the 4th charges become 4 months’ imprisonment.

25.  Coming now to the final charge, Charge 6. The defendant failed to surrender to custody after he was granted bail by the Court of First Instance.

26.  While a charge of this nature would always attract a deterrent sentence, I accept that the defendant committed this offence out of stupidity. I am therefore prepared to take a relatively low starting point of 3 month’s imprisonment in respect of this charge.

27.  The defendant is also entitled to one-third discount for this charge on a plea of guilty.

28.  After giving him the appropriate discount, the defendant is sentenced to 2 months’ imprisonment in respect of the final charge, Charge 6.

29.  Lastly, I have to deal with the matter of totality.

30.  In relation to Charges 1, 2 and 4, I agree with Mr Kelly’s submissions that these charges are really part and parcel of the defendant’s criminal conduct. These are a series of events which led to the recovery of a number of prohibited items in the defendant’s possession. I therefore take the view that the sentences that I impose in respect of these charges can be dealt with by a concurrent order.

31.  However, I cannot hold the same view in respect of Charge 6. Furthermore, I also do not think that by adding another 2 months to the total sentence of 14 months is in any way close to being manifestly excessive. I therefore think that the appropriate order in respect of the 6th charge should be one of consecutive order.

32.  The defendant is therefore convicted and sentenced to a total of 14 months’ imprisonment in respect of the 1st charge and he is convicted and sentenced to a further 2 months in respect of Charge 6. If my arithmetic is right, the defendant has to serve a total of 16 months’ imprisonment.